DON'T BREAK THE RULES BEFORE YOU'VE STARTED

Don't let this give you a headache! Following procedures is a lot less stressful than you imagine and it's all about changing your mindset! Procedures have structure, they allow you to just follow the rules without having to think about what the next step is.

Follow the procedures and life will be a lot easier for all!

Don't break the rules before you've even started
Pierre Marais

26 November 2007 at 11h00

The rather simplistic administrative task of drafting a notice to attend a disciplinary hearing could be the start of various procedural fairness complexities that need careful and legally sound attention. Failing this, an employer could make procedurally unfair decisions even before the hearing has started. An example that comes to mind is where an employee has been suspended, originally "pending the finalisation of an investigation", and, as part of the suspension conditions, was also instructed "to not have any contact with any employee, director, supplier", etc.

Pending the finalisation of a disciplinary hearing, the employee's suspension is merely extended on the same terms. As such, the employee is still precluded from communicating with, for example, colleagues/witnesses, who are necessary in order to properly prepare for his/her hearing or to have access to his/her office/computer. Should such limitations exist, an accused employee could reasonably ask for a postponement of a hearing in order to properly consult with his/her colleagues or to gain access to other information. Another example is where the notice notifies the accused employee of his/her right to use a colleague as representative, but the suspension conditions prohibit any communication with colleagues.

Once again, the accused employee will merely request, at the onset of the hearing and when management are ready to proceed, a postponement which, in fairness, should be granted. The overwhelming majority of the notices used by employers do not make provision for these practical occurrences and time and money are being wasted by being forced to postpone hearings, or risking procedural unfair claims where employers do not concede to reasonable postponements. Both of these examples could easily be regulated by included solutions in the notice. For example: "Should you need to contact any employee or client or supplier in preparation for your hearing, you should first contact so and so." This provision could furthermore be regulated by means of a time period limitation, for example, two to three days before the hearing commences, in order to allow sufficient time for the employer to deal with a request and still allow the accused employee sufficient time to prepare.

Once again, the overwhelming majority of disciplinary hearings are scheduled a few days in the future and employers should consider how they will still ensure procedural fairness if they refuse reasonable postponements, before steam-rolling on with the hearing. Although, as per the notice, an accused employee has been notified of a hearing, employers are not always certain whether the accused will indeed attend the hearing.

Knowing whether an accused will attend or not could affect various employer activities, for example:
Knowing the reason, for example, the accused being ill, unavailability of a witness(es), no trust in getting a fair hearing, no attendance per se, insufficient time to prepare, chairperson bias, concocted charges, and so on, will put the employer in a position to deal with these issues, in a procedurally fair manner. This will enhance the employer's bona fides when needing to defend a future alleged unfair dismissal claim.

If an employer knows beforehand, instead of on the day of the hearing, that the accused will not be attending due to, for example, being booked off sick, the employer can prevent its witnesses being present and cancel the flight arrangements of its out of town witnesses. The employer can also make arrangements to cancel the services of certain witnesses that charge a standby allowance (eg a handwriting expert, polygraph examiner, etc.)

The aforesaid are merely a few of many other practical situations that will require a few days for the employer to respond. Where a hearing's starting date is too imminent, a postponement is inevitable. Or, as in many cases, employers disregard very reasonable requests for postponements, because the accused "is merely playing for time". Maybe so, but many employees, some very well-advised, are using the system and are catching the foolhardy or ill-advised employers off guard. They often cause the employers to make off-guard decisions which may lead to actions which are procedurally unfair, or unreasonable, and these may come back to haunt the employer.We will further discuss practical problems next week. A pro-forma example of a Notice to Attend a Disciplinary Hearing, that caters for all the practical problems, is for sale.

Contact Natasha at 011-679 5944.

Pierre Marais is managing director of the Labour Law Group. Contact him on 011-679-5944 or via labourlaw@global.co.zaBack copies of articles can be obtained from Natasha at 011-679-5944.